The much awaited Supreme Court ruling has once again upheld the principle of multi-racialism embodied in the constitutional requirement for power sharing in Section 99 of Fiji’s constitution.
Fiji’s highest appellate court, maintained in a judgment delivered Friday that “power sharing among the nation’s different communities is central to the Constitution”.
The Court comprising the Chief Justice Daniel Fatiaki and four eminent judges from Australia and New Zealand unanimously dismissed the Prime Minister Laisenia Qarase’s appeal and ordered costs to be paid by the government.
Qarase is expected to meet with Labour Leader Mahendra Chaudhry to discuss the composition of the new cabinet in line with the Court ruling.
Labour’s management board met in Suva soon afterwards to discuss the case. In a statement issued afterwards, it said the unanimous verdict of the Court had upheld the integrity of the Constitution and “provides an unambiguous interpretation of Section 99 relating to multiparty government.
“The judgment offers clear direction on the formula and procedure for power sharing. It also stresses the mandatory obligation on the government and Prime Minister to comply with these. Any differences in policy, whether perceived or actual, are irrelevant.”
The Party welcomed the ruling as one that “paved the way for a return to constitutional government, investor confidence, full international recognition and peace in the country”.
FLP called on the PM to begin consultations on the composition of cabinert “at the earliest opportunity” and said it was ready to play “its constitutionally prescribed role in government”.
Because of its extreme significance to the Labour Party and to the political history of Fiji, we reproduce a summary of the 50-page judgment in full:
“The case which falls for judgment today concerns Section 99 of the Constitution. The section requires the establishment in Fiji of a multi-party cabinet. It is that requirement which was said by the Prime Minister in 1997 to make the Constitution “a positive instrument of inter-ethnic co-operation and national unity”.
The interpretation of Section 99 and the nature of the obligation(s) it imposes on the Prime Minister of the day is in dispute.
The section says that the Prime minister must establish a multi-party Cabinet. It also says he or she must invite all parties with more than 10% seats in the House of Representatives to be represented in the Cabinet in proportion to their numbers in the House. It leaves the selection of persons to be appointed from those other parties to the Prime Minister but requires the Prime Minister to consult with the leaders of those parties.
The section also acknowledges that some or all parties may decline the Prime Minister’s invitation to be represented in the Cabinet. In such an event cabinet positions not taken up may be distributed across the remaining eligible parties and the Prime Minister’s own party or coalition. If no party takes up the invitation then the positions may all be filled by appointees from the Prime Minister’s party or coalition.
The Prime Minister argues before this Court that Section 99 does not entitle any party to participate in the Cabinet. The requirement in the section that he invite all eligible parties to be represented in the Cabinet is said to be no more than a mandatory first step in good faith negotiations concerning the possible formation of a multi-party government.
The Prime Minister says he issued an invitation to the Fiji Labour Party as required by the Constitution. But, he says, that invitation was declined as no agreement could be reached about the policies to be implemented by the Cabinet.
This argument was not accepted by the Court of Appeal and the Prime Minister raises seeks to raise it again in this Court.
In the opinion of this Court, the concept of power sharing among the nation’s different communities is central to the Constitution. Section 99 provides an important practical tool by which power sharing is to be achieved. Of course it requires good faith and honest dealings on both sides of politics. But it does not require prior agreement about policies and political agendas before it can be implemented.
Even without a multi-party requirement, Cabinet government involves the management of conflict and disagreement between ministers so that effective government can be achieved. This is even more so in the case of coalitions. That is why the conventions of “collective responsibility”, “cabinet confidentiality” and “cabinet solidarity” all developed under the traditional Westminster system of a one party Cabinet. They are recognised in the Constitution of Fiji. They are the tools which the Constitution provides to make multi-party government possible.
Having provided those tools, the Constitution makes a command which must be obeyed, requiring the establishment of a multi-party cabinet.
That obligation will not inevitably produce unworkable government in the light of a number of structural elements in the Constitution which should enable the government to operate effectively without prior agreement between the major parties. In particular, it does not require the Prime Minister to accept a minority position in cabinet. For when Section 99 is properly applied the majority party or coalition will always have a majority of positions in the Cabinet.
The Court is of the opinion that the Prime Minister’s invitation to the Fiji Labour Party to be represented in the Cabinet was, as the Court of Appeal found, unconditional. Similarly, the Fiji Labour Party’s acceptance was also unconditional.
Section 99 is mandatory in its terms. The obligation it imposes does not stop at an obligation on the Prime Minister to negotiate in good faith with the Fiji Labour Party. It now requires the Prime Minister, as the Court of Appeal found, to consult with the Leader of the Fiji Labour Party. It requires him thereafter to select persons from the Fiji Labour Party for appointment, to advise the President to appoint those persons as Ministers and to appoint them to the Cabinet.
The obligation is clear. It is not affected by perceived policy differences between the Prime Minister’s Party and the Fiji Labour Party, It must be implemented without further delay.
For the reasons which are published today the Court is unanimous in dismissing the appeal and orders that the appellants pay the respondent’s cost of the appeal.